Tuesday, March 15, 2005

Activist Judges

The phrase "activist judge" will pop up in this gay marriage discussion, of course. People will insist that this judge is circumventing the will of the people, the will represented by the legislature in passing certain laws, or backing certain legal definitions over others.

I'm sorry --I'm really sorry -- but if you use the term "activist judge", then frankly you know absolutely nothing about how the US works. Nothing. Nada. You are in point of fact, and again I apologize, an idiot. Allow me to explain.

The Founding Fathers (who never, ever, EVER wanted us to completely trust the guys in charge, by the way) formed the three branches of the government -- executive/legislative/judicial -- so they would be in opposition. Laws are passed, judges decide if they make sense, the laws are overturned or approved, the executive branch referees. The branches of the government are not supposed to like each other. It's called "checks and balances", not "checks and hugs." This is the fundamental basis for the United States government. A third-grader can understand this.

I'm going to say this slowly. Judges. Are. Supposed. To. Overturn. Laws. Not all of them. But yeah, some of them. Then there are appeals, or new laws are passed, and the process starts all over again. That's how it works. That's how it's supposed to work.

You can disagree with a judge overturning a law you like, fine, that's democracy. But implying the judge has no right to overturn a law because said law represents the will of the majority, and therefore that judge is an "activist" judge, well, sadly, that reveals a depth of ignorance about the Constitution and the writings of the Founding Fathers which automatically disqualifies you from the discussion.

No, seriously. If you say you disagree with gay marriage, fine -- I disagree with you, but you're entitled to whatever opinion you have in your skull. But as soon as you use the phrase "activist judge", you take yourself out of the game. Not according to me. I like you. No, you're an idiot according to Thomas Jefferson, Thomas Paine, John Adams, Ben Franklin, et al. So, go read the Federalist Papers, and preferably leaf through Fareed Zakaria's The Future of Freedom, and come back when you have a basic understanding of civics. And you'd better know what the Lemon Test is, too, or you -- again -- must shut your trap and go back and do the required reading.

I am reminded of one of the finest examples of practical political instruction I've ever witnessed. I was at a bar with DJ MCarthey many years ago, and some idiot tourist a few stools down started sounding off. What was particularly galling was the man's ignorance of basic history. After a few minutes of this:

You hvae to understand, the extreme ends of both the left and right are often like salesmen. They have catchphrases and slogans that they memorize and employ when they're trying to sell something- in this case, their beliefs, but it's not so much of selling as it is cramming their ideology down your fucking throat.

In any case, I think one thing to consider is that they count on people not to really examine their slogans, much like real salesmen. In the case of a real salesman, for example, if a kitchen implement is so fantastic and such a great deal, why can't I buy it in stores? That's something they don't want to occur to you, hence how they repeat all of their slogans and statistics.

It's kind of the same way with the way the phrase "activist judges." Activism is support of a cause, which can be a good thing, but the tone which is used when using the phrase "activist judges" is somehow supposed to imply that activism is limited to the left, and that it is mostly all the judges' work, as if there are no real activists who are not a part of the system, instead trying to see it used properly and not abused.

Again, a catchphrase you're not really supposed to think about.

And this is why I am surprised not to see the people who espouse this wearing the sterotypical salesmen wear of a Technicolor plaid, pinstriped suit, a pencil thin mustache, and one of those straw hats.

Sure the judiciary is supposed to place limits on the legislature. Sure people who complain about 'activist judges' are idiots.

But aren't there also limits on the judiciary? Isn't that the constitution? I'm no expert on the gay marriage debate - and no expert on the US constitution - but shouldn't that be what determines all this? Or is some judge that, say, W appoints this year allowed to have the unrestricted final say on some contentous issue in the future.

Of course then we come down to interpretations of the constitution. (or changes to it). And who should be responsible for that? The elected legislature or the judges who's decisions are supposed to be guided by what's already in it? A little circular and a little too complicated for me...

Of course there are limits on the judiciary. But those limits are built in within the system -- both in its original structure and in the natural evolution of society. The "same" Supreme Court as an institution delivered both the Dredd Scott verdict and Virginia vs. Loving. A combination of all three branches -- plus the populace -- shifted and corrected the attitudes of the judiciary.

Actually, the roles of the three branches of government are scrupulously and quite clearly laid out in the constitution. The legislature's job is to make law, the executive's job is to administer law, and the judiciary's job is to evaluate law. How to change the Constitution is also quite clearly delineated within the original document -- which is why it's been done so rarely. It's bloody difficult to do.

Didn't anyone pay attention to Schoolhouse Rock? They had this whole extended metaphor about a three ring circus as the system of checks and balances. I think alot of people need to go back and watch those again.

You are right, the comparison of the Dredd case vs the Loving case shows how the judiciary's stance can evolve. But what changes the stance?

Is it the executive and the legislature - which are both chosen by the public? Shouldn't the judiciary bow to the wishes of the public then? Isn't that what democracy is all about?

I get scared when I see people in charge thinking they know better than the public. Of course - a little fear is good. And if we followed the general public in this country, Simon Cowell would be on the Supreme Court.

But how far should judges go? If 80% of the American public is against gay marriage (I'm picking that number out of thin air) should the judiciary allow it to be outlawed?

Of course majority opinion shouldn't dictate the decisions of the judiciary. BUT I don't think the judiciary should ignore the will of the people. I don't know the answers. I look at what Scalia said today about abortion and the death penalty - and he's not that wrong.

The phrase “The will of the people” rings so hollow. “I was just following orders” also comes to mind. Thank God Rosa Parks didn’t follow the will of the people. Democracy is the great experiment and sometimes you have to bring people kicking and screaming to do the logical thing. Also it is hard to stomach the will of the people when only about 50% care to cast their will at a ballot box. Those great men who all got together in 1776 new something more than the rest of us and set up this system for a reason. They left the king of England because God ordained him. Maybe so, but not by my God and as it seems not by theirs either.

Of course the judiciary needs to take the "will of the people" or at least current social constructs, into account -- that only makes sense. They need to take many things into account when making decisions; look at how the majority decision on the recent ban on death penalties for minors is written. My point is simply that the phrase "activist judge" is not only meaningless, using it belies an ignorance about how democracy in the US is supposed to work which is so deep, it reveals something about the character and political thinking ("Me like talking points!") of the person who uses it.

You get scared when the people in charge think they know better than the public? Jesus, man, that struggle is the very crux of a functioning democracy. You know, in theory, that's why the US is a republic and not a pure democracy -- our leaders are called "leaders" and not "followers" for a reason. Remember, many of the delegates who signed the Declaration of Independance were going against the majority desire of their constituents; women gained suffrage nationally despite severe opposition from many states; you're being a little tunnel-visioned if you think that blacks would have any rights in some Southern states if the government hadn't stepped in over the will of the people.

Sure it can go to far. But it HASN'T. And it hasn't because, up to now, the system has worked warts, bumps, bad cogs and all. That's what the checks and balances are for. I just think it miserable and petty that people start "worrying" about the judiciary when they start deciding against your opinions.

Again, the job of the judiciary, the job of judges, is to be impartial and not swayed by public pasions. I'm sorry, when the hell did we forget how judges work? That's. Their. Job. Worrying about judges not taking into account the will of the people is no less ridiculous than worrying about the legislature taking the will of the people into account.

May I add, when we have an executive branch which consistently, demonstrably goes against the majority will of the people on certain policy issues -- and makes a virtue of it ("I don't lead by polling.") -- your concern seems misplaced.

Also, no pulling numbers out of "mid-air" here, that's talk radio crap. If you have an opinion, do the minimum work necessary to make it informed.

As of this month (as opposed to last summer, when emotions were running super-high), going by the latest Quinnipac and CBS polls, recognition of SOME sort of legal agreement between gays comes in around 50% now -- using the word "marriage" changes the numbers considerably, showing again the power of semantics. More tellingly, support for a Constitutional Amendment banning even marriage (the hot button word getting the biggest negative response) barely clears 40% in most polls. What does this indicate? What opposition there is, it's not as deep as it is broad. So, while one can argue either side of the issue, it's not so far out in the land of bizarre-o that the courts are breaking basic social construct by tackling the issue.

When the Supreme Court struck down the bans against interracial marriage in 1968 through Virginia vs. Loving, SEVENTY-TWO PERCENT of Americans were against interracial marriage. As a matter of fact, approval of interracial marriage in the US didn't cross the positive threshold until -- sweet God -- 1991

Damn activist judges, eh?

Oh, and Scalia is one of the worst judges to ever sit on the bench. Just saying.

I think the reason for the term "activist judges" isn't because they overturn the law, or even that they interpret the Constitution. That is what the judicial branch is supposed to do.But going beyond that and actually making law, now they are being activists. And it doesn't matter which side of the spectrum - left or right. It is the Legislature that is supposed to make the laws and not the Judicial. I watched SchoolHouse Rock too!

Yeah, but your terms are shit. What do you mean by "making law"? The process by which -- and the results of -- one judgement or another do not vary in mechanics. When a judge rules against school prayer, but for funding of after-school religious programs, is he "making law" in one case but working within his judicial reach in the other?

If, as you say, some judges "make law", you should be able to easily and clearly contrast them with other judges who don't "make law". Can you objectively show the difference on how a ruling is written, enforced, appealed or not appealed, then dealt with by the legislature which elevates that ruling to "making law"?

No. Of course you can't. Saying some judges "make law" is poor logic. (and in my mind, the worst of sins -- bad rhetoric) The phrase, like "activist judge", does not stand up under the most cursory of examinations.

It's the just a variant talking point, under a different sweater. Worse, it's a meaningless, ill-defined talking point in support of another talking point.

Declaring a law unconstitutional is not "making" a law. It's unmaking a law, which is totally within the courts' power.

By the way, Scalia's problem was that the court paid too much attention to the "evolving standards of decency that mark the progress of a maturing society." (Taken from the decision, http://a257.g.akamaitech.net/7/257/2422/01mar20051115/www.supremecourtus.gov/opinions/04pdf/03-633.pdf not how he misquoted it in the article.) In other words, the Supreme Court did consider the will of the people, so now he's crusing the press circuit to bitch about it. Just an example of how people like the idea fine, as long as it's the "right" people.

You're absolutely right that the judiciary is entitled to overturn laws based on Constitutionality or conflict of laws. The Constitution and Bill of Rights are important protections agains the oppression that would result from the unfettered tyranny of "true democracy."

However, I think you define "activist judge" too broadly. An activist judge is not merely one who overturns a law that reflects the will of the people, but one who overturns a law without a proper legal basis. It's when a judge enforces policy, which is not within the purview of judicial power.

In comments, I think you suggest that there's no strict dividing line between policy-making and enforcing the constitution, and thus that any such critique is "illogical." That the line is not clear does not make a distinction useless. We can imagine all sorts of circumstances where a judge would obviously go too far.

For example, if State makes a law saying that fishermen can't catch more than 20lbs of bluefish a day. A judge coudln't strike it down because "the constitution" demands that fishermen catch at least 30 lbs of bluefish a day. That's policy--not a constitutional right. Obviously, that's an absurd example, but it shows that there is such a thing as "too far."

The moral of the story is that I think it's overstating things to say that people who get angry at "activist judges" have no understanding of democracy. At most, you simply disagree about where the line is.

Yes, yes, we can quote absurd examples all day. We can imagine situations where some judge makes a decision not based on legal precedent (although part of their job is making precedent, but anyway) and because in this sad parallel world their is no juducial review, appeals process, strong executive branch, blah, blah blah the populace must obey this arbitrary judgement even though there is no legal basis, because judges who pull judgements out of their ass irrespective of the law have long, long careers on the bench.

I'm not the one defining "activist judge" here. I'm reacting to the definition as it's used in context every day.

I'm talking about the way that "activist judge" is used by 99.9999999999999999% of the people who use the term mean it. When the President, or a talk show host, or the local guy at the bar uses the phrase "we must stop these activist judges" they certainly as shit do not mean "we must stop these thousands of judges or rather at most hundreds although even going by right-wing news reports maybe dozens but still a significant enough number of them to unbalance the tripartite structure of our society who make decisions that have no legal precedent and ALSO are immune to the entire governmental process ... but who are also somehow rare enough as to need to be defined by hypotheticals so in theory they are no indicators of systemic flaws."

You know what they mean. I know what they mean. You know what issues they're discussing. I know what issues they're discussing. And in that context, yes the one used 99.999999999999% of the time, these people are indeed talking out of their ass.

And that makes me angry. Because they either a.) have not put enough thought into what they're saying or b.) do know it's a bullshit term (in this context, the one we're using every day) and STILL use it.

I appreciate your reasonable attitude, yes, I appreciate that. But again, people are defending bad rhetoric and poor logic with hypotheticals and sophistry. Sometimes it's not a matter of "where the line is" when facts, history and common sense are where You draw YOUR line.

Show me the decisions without legal precedent -- again, completely ignoring that often a court's job is to set precedent, but again, why restrain ourselves to how the real world works -- fine, we'll put those in the category of "possible activist judge." I'm betting that this subset would a.) be tiny and b.) probably not intersect the subset of how most people would collect their list "activist judges."

On the other hand, don't think I LIKE the fact that too many very difficult, moral issues are tossed to the courts by an Executive and Legislative branch too goddam cowardly to tackle them head-on. (and by the way, this IS the first sign of the Apocalypse -- Pat Buchanan and I agree on this)

Abortion, for example, festers because the anti-abortion humans feel like they got robbed and have no recourse, and the pro-choicers live in constant stress of a court reversal or sneaky side-maneuvers. If Ireland could settle its abortion issues with a referendum, I'd like to think the US could too.

Of course, I'd want to see voting well and truly fixed before we tried anything like that.

i'm sure this thread is long since played out, but i just got here (via Atrios). and it's a really good exchange based on a great post, so can't help jumping in.

Re: the Rogers v. anonymous dispute on judges "making law." respectfully, i don't think the distinction between "interpreting law" (what the judiciary is there for) and "making law" (getting on to the turf of the elected branches or government) is quite as nebulous as their exchange makes it sound. the problem is that courts can't be limited to interpreting the law - they need to be able to make law at least some of the time in order to effectively discharge their duty (about which much blather below). because they're not elected, they should do that with the utmost possible restraint. and when they don't, even in the many circumstances when i agree with their goals, it makes me uncomfortable (for whatever that's worth).

here's what i mean. a court is interpreting law when it rules that a law, regulation or action of the executive or legislative branch is or is not consistent with the Constiution. so far, so good. (and by the way, this is about as far as the Supreme Court went in Roe v. Wade. the primary greivance of a lot of those who carp the loudest about judicial activism is really well within the realm of even the narrowest definition judicial authority.)

but the court is objectively making law when it directs the other branches to fix the law, regulation or whatever in a specific way. That's not something that a court can altogether avoid doing, for two reasons:

first, if the law or policy is unconstitutional, the judiciary has to be able to stop it from being enforced - otherwise it's just an ombudsman & not a coequal branch of government. so the court is and should be empowered to prohibit the other branches from doing things: e.g., the law that the legislature passed is invalidated, the executive is proscribed from enforcing it.

Second, because the court always gets into these questions by means of some individual or group petitioning for redress, the court usually has to direct the other branches in some way to provide redress to the plaintiff(s). so the court is and should be empowered to direct the other branches to take actions that are narrowly targeted to redress the greivances of the plaintiff(s): e.g. the property seized from the plaintiff has to be returned, the plaintiff must be released from custody, the class of plaintiffs is entitled to benefits that they had been denied.

where it gets slippery, and troubling to me, is where the court, rather than directing the other branches to come up with an alternative policy, pre-empts the other branches by directing them to implement a specific policy when there are many different means of redress that could be appropriate. unfortunately for me, the examples of that type of pre-emption that leap to mind are ones where the courts are on the side of the angels: ordering child protection agencies to hire more social workers, ordering state legislatures to provide more state aid to school districts, ordering school districts to take kids out of their neighborhood schools and bus them across town to achieve integration, etc. i'm supportive of the ends (or at least sympathetic to the intentions), but can't reconcile myself to the means.

these types of court orders are inherently undemocratic. That's bad, not only because it offends my philosophy of government, but also because it means that the remedies the courts impose are inherently unstable and vulnerable to being circumvented or overturned. moreover, they tend to diminish the credibility and authority of the courts over the long haul.

Activist Judges … Elected George Bush President; Replace the Bill of Rights with the Ten Commandments; Burn the Constitution while opposing burning the flag; Throw the book at marijuana and let corporate corruption off easy; Support religious freedom if it preaches neoconservative theology; Support torture and suppresses habeas corpus.

I think there is in deed a problem with "activist judges." However, citing gay marriage isn't one of them. One could argue, marriage is essentially a contract, and even republicans believe there is an implied right to contract. Not to mention, the 14th amendment demands fair and equal protection under the law.

If you want to talk about activist judges, talk about those who feel children somehow don't have the right to take the fifth amendment or how courts seem to think school's have no need for a reasonable suspicion for searches. Talk about a supreme court who even ruled emminent domain could be used for businesses basically. Then, your on track.